On the Discovery Instute’s EvolutionNews blog site, West presents his 3rd part: Dover in Review, pt. 3: Did Judge Jones accurately describe the content and early versions of the ID textbook Of Pandas and People?

Timothy Sandefur has already shown in depth how West erred in his understanding of the legal rules guiding Intervention so I will focus on a comment made by West and show it to be without much legal merrit by looking at the Judge’s ruling on FTE’s (Foundation for Thought and Ethics) motion to intervene:

West wrote:

Before addressing the merits of Judge Jones’ assertions regarding Pandas, something needs to be said about the legal and ethical propriety of Judge Jones placing so much weight on this early textbook in his judicial opinion. Frankly, it is astounding that Judge Jones treats Pandas as central to his decision given that he refused to grant the book’s publisher, the Foundation for Thought and Ethics, permission to intervene in the case in order to defend itself.

First, for the sake of the reader and of West, let’s first look at Judge Jones legal decision to deny the FTE to intervene. After all, understanding the legal rules is essential in understanding (the legal propriety of) Judge Jones’ ruling.

As FTE submits, the Federal Rules of Civil Procedure provide for two types of intervention: intervention as of right and permissive intervention. See Fed.R.Civ.P. 24. We will discuss the two types of intervention in turn.

So let’s first look at Intervention as of right

Intervention as of Right. Upon timely application anyone shall be permitted to intervene in an action: (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practicable matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
Fed.R.Civ.P. 24(a)

The Judge points out that under the rules of the 3rd Circuit Court of Appeals, all of the following four tests need to be satisfied

the Third Circuit Court of Appeals has instructed that Fed.R.Civ.P. 24(a) entitles an applicant to intervene if the applicant establishes that all prongs of the following four-part test are satisfied: (1) the application for intervention is timely; (2) the applicant has a sufficient interest in the litigation; (3) the interest may be affected or impaired, as a practical matter by the disposition of the action; and (4) the interest is not adequately
represented by an existing party in the litigation.

The Judge found that the FTE failed the timeliness requirement

We are in agreement with the parties that the advanced stage of this litigation renders FTE’s application untimely as it will cause prejudice, delay, and added expense to the parties. In that regard, we conclude that application of the Mountain Top factors, which we previously delineated, to this case demonstrates that FTE’s Motion is untimely.

However, the judge still applies the additional three tests

Although the Applicant carries the burden of proving all four parts of the test under Fed.R.Civ.P. 24(a) and has failed to do so with respect to the timeliness of intervention, in the exercise of completeness, we will analyze the remaining three prongs of the test in this narrative. See Alcan Aluminum, 25 F.3d at n.9; see

Again the Judge, in the exercise of completeness, considers all the relevant tests. Judge Jones’ ruling to deny FTE’s motion sets the standard for his thorough ruling in the Kitzmiller case.

The three other tests are

Interest in the litigation

We do not find that the scenario raised by FTE, specifically that if this Court should find IDT to be the equivalent of creation science, which will result in the loss of hundreds of thousands of dollars to FTE, constitutes a “legal interest as distinguished from interests of a general and indefinite character.” Harris, 820 F.2d at 601; see also United States v. American Telephone and Telegraph Co., 642 F.2d 1285, 1292 (D.C. Cir. 1980).

and

In addition, we find that Applicant has not demonstrated a “tangible threat to a legally cognizable interest[.]” Harris, 820 F.2d at 601. Although FTE may be quite concerned with the outcome of the litigation in this case, the afore-mentioned concern does not rise to the level of a significantly protectable interest in the
litigation warranting intervention as a party. Therefore, Applicant has not demonstrated an interest in the litigation to justify intervention as of right pursuant to Fed.R.Civ.P. 24(a).

Potential Impairment of the Interest

Once an applicant for intervention has established that he or she has a sufficient legal interest in the underlying dispute, the applicant must also show that the interest is in jeopardy in the lawsuit. Alcan Aluminum, 25 F.3d at 1181, n.9; see also Harris, 820 F.2d at 596. In making such a determination, the court is obligated to assess the “practicable consequences of the litigation,” and “may
consider any significant legal effect on the applicants’ interest.” Id. at 601.

As we have previously determined that seeking to intervene, to prevent potentially significant economic loss from potential decline in books sales to public educational institutions, is not a cognizable interest in the litigation which warrants intervention as of right on the part of Applicant, it logically follows that we need not determine whether Applicant’s alleged interest as so expressed is placed in jeopardy by the case sub judice. Accordingly, the Applicant has failed to prove this part of the intervention as of right test.

and

Moreover, to the extent that the stare decisis effect of an order declaring intelligent design instruction to be unconstitutional in a public school might require FTE to redirect its marketing efforts, that indirect, remote, and attenuated effect fails to “impair” FTE’s interest.

Representation by Existing Party in Litigation

After careful consideration of the parties’ submissions and the record, including but not limited to the three typical reasons constituting inadequate representation as specified by the Third Circuit Court of Appeals, we do not find that any interest alleged by Applicant is not being adequately represented by Defendants in this action for the additional reasons that follow. See Hoots, 672
F.2d 1135.

Having rejected intervention as of right, the court continues to examine “Applicant’s alternative argument that the Court grant their intervention application under Fed.R.Civ.P. 24(b), which provides for permissive intervention”.

The Judge observes that:

Whether to grant permissive intervention is within the Court’s discretion, but in making this determination, courts consider whether the proposed intervenors will add anything to the litigation.

Additionally, if the interests of the proposed intervenors are already represented in the litigation, courts deny such application to intervene. Hoots, 672 F.2d at 1136.

Both the Dover School Board and the Plaintiffs were objecting to FTE’s intervention requests.

Both parties oppose permissive intervention. Plaintiffs submit that FTE’s defense would present a question of fact in common with that already asserted in the lawsuit, namely, whether intelligent design is fundamentally a religious proposition rather than a scientific one. Plaintiffs maintain that FTE will not add any defense to the instant case that Defendants have not already demonstrated that they will present. (Pls.’ Br. Opp. Mot. Intervene at 20). Likewise, Defendants oppose permissive intervention by FTE and argue that they adequately represent any generalized interest in IDT that is shared with FTE. (Defs.’ Br. Opp. Mot. Intervene at 5).

West observed that “something needs to be said about the legal and ethical propriety of Judge Jones placing so much weight on this early textbook in his judicial opinion“. Given the legal history, it should be clear that the Judge acted within legal guidelines and rules. Again, it seems to me that West could have saved himself much embarassment if he had familiarized himself with the legal history. West may disagree with the legal rulings, especially since the ruling disagree so much with the Discovery Institute’s position, but to call into question the legal and ethical propriety of the Judge without showing any familiarity with the legal landscape seems rather peculiar to me.

Finally, West seems to make a big deal about the judge limiting the FTE’s Amicus Brief submission to 5000 words. West seems to be unfamiliar with the Local Rules of the Court, especially rule LR 7.8 Contents and Length of Pretrial Briefs.

(1) Unless the requirements of Local Rule 7.8 (b)(2) and (3) are met, no brief shall exceed fifteen (15) pages in length.
(2) A brief may exceed fifteen (15) pages so long as it does not exceed 5,000 words.(3) No brief exceeding the limits described in this rule may be filed without prior authorization. Any motion seeking such authorization shall specify the length of the brief
requested and shall be filed at least two (2) working days before the brief is due.

Again, Judge Jones is following the local rules of the Court. This rule applies equally to all parties involved. Did the FTE even file a motion to exceed the length limits? I have found no record of this in the Amicus Filings.

Despite the fact that amici failed to formally request leave of Court before filing the submissions, we will review them absent the request of formal leave as we do not find it necessary to elevate form over substance.1

1 We do note however, that the better practice is that a motion seeking leave of Court to file an amicus brief should be filed concurrently with any future amici submissions.

Legal History
The rich legal history of the FTE intervention shows that questioning the Judge’s legal propriety in this case seems a hard one to actually support. I have yet to locate the Defendants’ oppostion to FTE’s motion to intervene. Any hints would be welcome.